Published: Monday, April 1, 2013 at 6:39 p.m.

Last Modified: Monday, April 1, 2013 at 6:39 p.m.

New Hanover County is almost out of options to remove Commissioner Brian Berger from office – primarily because Wednesday is the deadline for state legislators to file local bills.

Berger has refused to resign time and time again. Most recently, Chairman Woody White called for his resignation in late March after his latest rants and erratic behavior left county staff and his fellow board members fearing for their safety.

But beyond Berger’s resignation, there are currently only four ways to remove an elected official in North Carolina: if the member is convicted of a felony, corruption, financial or election law violations; the board files an amotion; or the attorney general brings action on behalf of the state in Superior Court. The state legislature could also pass an act removing him.

But now the county is looking at putting a new twist on a rarely used procedure.

New Hanover County officials have been working with the local delegation to come up with a draft of a statewide bill that would allow for the removal of elected officials, including county commissioners, board of education members and city officials.

Previously all discussions with state lawmakers had surrounded the possibility of a recall bill specifically for Berger.

This is the first time a larger bill has been discussed in the context of this situation.

“In the future somebody else could go through this and have a legitimate situation where the removal of an elected official is necessary,” White said. “We need to tread very carefully when we consider using the courts to usurp the will of the people, but sometimes the courts are the answer.”

Rarely used procedure

The proposed bill is to be modeled after the procedure for removing a district attorney, N.C. General Statute 7A-66.

This statute allows for the suspension or removal of a district attorney if there is a mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent; willful misconduct in office; willful and persistent failure to perform his duties; habitual intemperance; conviction of a crime involving moral turpitude; conduct prejudicial to the administration of justice which brings the office into disrepute; or knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal.

The removal process could be enacted by anyone – citizens and officials alike. It is started by filing a sworn affidavit charging the district attorney with one or more grounds for removal with the clerk of Superior Court of the county where the district attorney resides. From there multiple reviews of evidence occur, a public hearing is held and a superior court judge decides whether the charges warrant removal of the elected official from office.

This procedure has only been used twice before – once in New Hanover in the mid-1990s and again with the Durham district attorney in 2012.

The proposed bill would have modified the removal procedure to fit the descriptions of other elected officials.

Apprehension and an approaching deadline

However, some legislators have reservations about turning a local issue into a statewide bill.

Rep. Susi Hamilton, D-New Hanover, said the state should be cautious to “intervene when a local government has the authority to act – especially when it comes to local elections.”

She said some members of the local delegation have discussed the issue with the state’s legal research division, which informed them that the board of commissioners could do an amotion, a North Carolina common law that deals with a private corporation removing an officer because he was unfit.

“The county is perfectly within its legal right to go through its amotion process,” Hamilton said. “The law may be old and it may be seldom used, and rightfully so, but that process is before them and it’s the most expeditious.”

The county has mulled over the idea of an amotion to remove Berger before, but White said the option was put to the side because of the lack of information regarding the amotion process.

“The amotion process is not statutory and it seems to be a vague and antiquated process. It may work, but we thought the legislative approach would allow for more transparency and input on when removal should or should not be pursued,” he said. “The bill based on the district attorney’s removal has due process and elements of fundamental fairness built in ... The amotion process is one that is not as clear as to how to proceed.”

Berger did not respond to requests for comment Monday evening.

North Carolina currently has no statutory provision outlining the procedure for removal of an elected municipal official for misconduct or lack of fitness to hold office after an election. State common law is what gives counties and other municipalities the power of the amotion process.

“The legislature creates county government. Therefore the legislature is the appropriate venue for addressing the removal of county officials and the process that should be followed,” White said. “Resorting to a centuries old, antiquated process would not be the preferred method. But in the absence of legislative interest, we will continue to assess our options within the amotion process.”

Hamilton would not state absolutely whether or not she would be filing the bill in question. Wednesday marks the deadline for legislators to file new bills dealing with local matters. Local bills already filed can be amended after the deadline.

<p>New Hanover County is almost out of options to remove Commissioner <a href="http://www.starnewsonline.com/section/topic9976"><b>Brian Berger</b></a> from office – primarily because Wednesday is the deadline for state legislators to file local bills.</p><p>Berger has refused to resign time and time again. Most recently, Chairman Woody White called for his resignation in late March after his latest rants and erratic behavior left county staff and his fellow board members fearing for their safety.</p><p>But beyond Berger's resignation, there are currently only four ways to remove an elected official in North Carolina: if the member is convicted of a felony, corruption, financial or election law violations; the board files an amotion; or the attorney general brings action on behalf of the state in Superior Court. The state legislature could also pass an act removing him.</p><p>But now the county is looking at putting a new twist on a rarely used procedure.</p><p>New Hanover County officials have been working with the local delegation to come up with a draft of a statewide bill that would allow for the removal of elected officials, including county commissioners, board of education members and city officials.</p><p>Previously all discussions with state lawmakers had surrounded the possibility of a recall bill specifically for Berger.</p><p>This is the first time a larger bill has been discussed in the context of this situation.</p><p>“In the future somebody else could go through this and have a legitimate situation where the removal of an elected official is necessary,” White said. “We need to tread very carefully when we consider using the courts to usurp the will of the people, but sometimes the courts are the answer.”</p><h3>Rarely used procedure</h3>
<p>The proposed bill is to be modeled after the procedure for removing a district attorney, N.C. General Statute 7A-66.</p><p>This statute allows for the suspension or removal of a district attorney if there is a mental or physical incapacity interfering with the performance of his duties which is, or is likely to become, permanent; willful misconduct in office; willful and persistent failure to perform his duties; habitual intemperance; conviction of a crime involving moral turpitude; conduct prejudicial to the administration of justice which brings the office into disrepute; or knowingly authorizing or permitting an assistant district attorney to commit any act constituting grounds for removal.</p><p>The removal process could be enacted by anyone – citizens and officials alike. It is started by filing a sworn affidavit charging the district attorney with one or more grounds for removal with the clerk of Superior Court of the county where the district attorney resides. From there multiple reviews of evidence occur, a public hearing is held and a superior court judge decides whether the charges warrant removal of the elected official from office.</p><p>This procedure has only been used twice before – once in New Hanover in the mid-1990s and again with the Durham district attorney in 2012. </p><p>The proposed bill would have modified the removal procedure to fit the descriptions of other elected officials.</p><h3>Apprehension and an approaching deadline</h3>
<p>However, some legislators have reservations about turning a local issue into a statewide bill.</p><p>Rep. Susi Hamilton, D-New Hanover, said the state should be cautious to “intervene when a local government has the authority to act – especially when it comes to local elections.” </p><p>She said some members of the local delegation have discussed the issue with the state's legal research division, which informed them that the board of commissioners could do an amotion, a North Carolina common law that deals with a private corporation removing an officer because he was unfit. </p><p>“The county is perfectly within its legal right to go through its amotion process,” Hamilton said. “The law may be old and it may be seldom used, and rightfully so, but that process is before them and it's the most expeditious.”</p><p>The county has mulled over the idea of an amotion to remove Berger before, but White said the option was put to the side because of the lack of information regarding the amotion process.</p><p>“The amotion process is not statutory and it seems to be a vague and antiquated process. It may work, but we thought the legislative approach would allow for more transparency and input on when removal should or should not be pursued,” he said. “The bill based on the district attorney's removal has due process and elements of fundamental fairness built in ... The amotion process is one that is not as clear as to how to proceed.”</p><p>Berger did not respond to requests for comment Monday evening.</p><p>North Carolina currently has no statutory provision outlining the procedure for removal of an elected municipal official for misconduct or lack of fitness to hold office after an election. State common law is what gives counties and other municipalities the power of the amotion process.</p><p>“The legislature creates county government. Therefore the legislature is the appropriate venue for addressing the removal of county officials and the process that should be followed,” White said. “Resorting to a centuries old, antiquated process would not be the preferred method. But in the absence of legislative interest, we will continue to assess our options within the amotion process.”</p><p>Hamilton would not state absolutely whether or not she would be filing the bill in question. Wednesday marks the deadline for legislators to file new bills dealing with local matters. Local bills already filed can be amended after the deadline.</p><p>Staff writer Molly Parker contributed to this report.</p><p>Ashley Withers: 343-2223</p><p>On <a href="http://www.starnewsonline.com/section/news41"><b>Twitter</b></a>: @AshleyWithers</p>